TRINITY RIVER AUTHORITY,FROM A COUNTY COURT APPELLANT, v. TOM RUBIO, a/k/a TOM RUBIO, JR., JOSEPHINE RUBIO, & SOUTHWEST SAVINGS ASSOCIATION, APPELLEES

    
COURT OF APPEALS
    
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00951-CV
 
TRINITY RIVER AUTHORITY,FROM A COUNTY COURT
 
        APPELLANT,
 
v.
 
TOM RUBIO, a/k/a TOM RUBIO, JR.,
JOSEPHINE RUBIO, & SOUTHWEST
SAVINGS ASSOCIATION,
 
        APPELLEES.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES HOWELL, LAGARDE AND WHITTINGTON
OPINION BY JUSTICE LAGARDE
JULY 10, 1989
        Trinity River Authority (TRA) condemned a portion of a tract of land owned by Tom Rubio, a/k/a Tom Rubio, Jr., and Josephine Rubio in which Southwest Savings Association FN:1 had a security interest (appellees). Following a hearing on TRA's petition in condemnation, held in the county court, the special commissioners rendered an award of $50,000 to appellees. Thereafter, TRA and appellees filed objections to the special commissioners' award and appealed to the county court at law. TRA now appeals the judgment rendered pursuant to the jury's verdict in that court. Because we conclude that the trial court erred in striking TRA's "First Amended Original Statement and Petition for Condemnation" (amended petition), we reverse and remand for a new trial.         On October 18, 1982, TRA filed its original "Statement and Petition for Condemnation" (original petition) of a permanent utility easement and right-of-way over a fifty-foot-wide strip of land, rights of ingress and egress, and a temporary construction easement and right-of-way approximately 200 feet in width for constructing a subsurface utility sewer pipeline and "all incidental equipment and appurtenances for the purpose of transmission of wastewater." As specified in the original petition, the temporary construction easement was to continue for the use of TRA "only so long as is required to complete the construction." Thereafter, TRA apparently discovered that the permanent utility easement described in its original petition overlapped an existing permanent utility easement it had acquired in an agreed judgment entered in 1959. The 1959 judgment had granted TRA a "right of free ingress and egress for such purposes," and the purpose of the condemnation was for the use "in connection with sewage gathering, transmission and disposal systems." Thus, on June 22, 1987, four years and eight months after filing its original petition, TRA filed its amended petition. The amended petition apparently deletes the "overlap" regarding the existing permanent utility easement and results in a reduction of land acquired for permanent easement usage from .551 acres, or 24,000 square feet, to .358 acres, or 15,585 square feet, for a total reduction of .193 acres, or 8,415 square feet. FN:2 The amended petition also deletes the right of ingress and egress across appellees' remaining property and specifically defines the total number of days TRA would occupy the temporary construction easement area. FN:3
        On April 1, 1988, nine months after TRA filed its amended petition, appellees filed a motion to strike TRA's amended petition. In their motion, appellees alleged that the original petition constituted a "blanket easement" over the entire property for a period in excess of five years. Appellees further asserted that:
        Only until June of 1987, some five (5) years subsequent to the date of taking . . . did [TRA] choose to amend its pleadings. This (in action) [sic] and conscious indifference to the rights of [appellees] has prejudiced [appellees] and accordingly the amendment should in all things be stricken. State vs. Taylor, 721 S.W.2d 541 (Tex. Civ. App.--Tyler 1986, writ ref'd).
On April 15, 1988, the trial court conducted a hearing on the motion to strike, and the trial court subsequently ordered TRA's amended petition to be stricken. The order simply states that appellees were "prejudiced by said First Amended Original Petition." Thereafter, trial before a jury began on April 18, 1988. The jury found that $366,500 would compensate appellees for the permanent easement, temporary easement, and damages to appellees' remaining land as described in the original petition. Based on the jury's findings, the trial court entered judgment granting TRA a temporary and permanent easement as described in the original petition and awarding appellees $366,500, together with pre-judgment and post-judgment interest and costs of court.
        In its first point of error, TRA maintains that the trial court erred in striking TRA's amended petition. The order does not state the trial court's reason for striking the amended petition. TRA argues, however, that the trial court erred in striking the amended petition for two reasons. First, TRA contends that a condemnor may, at anytime, release rights acquired by an eminent domain proceeding. See Southwestern Bell Telephone Co. v. West, 417 S.W.2d 297, 299 (Tex. App.--Tyler 1967, writ ref'd n.r.e.). TRA asserts that this general rule applies unless the landowner is prejudiced and that, here, appellees failed to allege and prove the proper elements of prejudice that they were required to establish before the trial court was authorized to strike the amended petition.
        In response, appellees contend that their rights were prejudiced because TRA's original petition constituted a "blanket easement" over the entire property for a period in excess of five years (the length of time between the filing of the original petition and the amended petition). Appellees assert that the mere passage of time alone, especially when coupled with conscious indifference, has irretrievably altered the status quo. Appellees also stated that they suffered a loss of a "window of opportunity" to convey their property. In support of appellees' argument that they were prejudiced, appellees assert that at the hearing on their motion to strike, the trial court took judicial notice of the fact that the real estate values in the north Texas area experienced a rapid decline in values during 1982 (the year the property was condemned) and an even more rapid decline during 1987 (the year that the petition was amended). Appellees also rely on the testimony of an appraiser who testified at trial that the real estate market was active and ascending at a very fast pace in 1982. Appellees argue that because of the dynamic changes in the marketplace, restoration of the property rights to the appellees did not result in a restoration of the status quo. Appellees further contend that the property, as burdened by the original petition, was "unsaleable and incapable of development." Appellees cite Murray v. Devco Ltd., 731 S.W.2d 555, 557 (Tex. 1987), to support their proposition that as a condition precedent to the condemnor's right of dismissal, the status quo must be restored. Appellees maintain that when the status quo cannot be restored, the condemnor's taking is complete. Id. at 587. Further, appellees argue that TRA physically used the property because they:
        physically went on the property, they physically dug on the property, they physically laid a pipeline on the property, [and] they physically took and used the property and they physically did this back in 1982 and '83 by their own pleadings that show they were physically on the property at least during two hundred four days during that period of time. . . .
 
 
Appellees also complained that TRA has "taken the man's [appellees'] property, they [TRA] have taken it off the market, they have taken it from him, they have used the property. . . ." Appellees assert that there was no way that they could get back the same property now that was taken in 1982, either "physically, marketability-wise, value-wise or any way, shape or form."
        We recognize that it is not the policy of the law to encourage economic waste. Texas Power & Light Co. v. Cole, 158 Tex. 495,___, 313 S.W.2d 524, 531 (1958). A condemnor should not be required to take more land than it needs nor secure unnecessary easement rights, and prior to the confirmation of the commissioners' award or other judgment of the court, the condemning authority, in the absence of some showing of prejudice to the landowner, should be allowed to abandon such unnecessary lands or rights. Id. Before confirmation of the commissioners' award, but after the commissioners have made an award in a condemnation proceeding, a condemnor may take possession of the condemned property pending litigation if the condemnor pays the award to the property owner or the court and executes a bond. See Murray, 731 S.W.2d at 557. Also, a condemnor has a right to refuse to take the property sought to be condemned and to move to dismiss the condemnation proceeding. Id.; see TEX. PROP. CODE ANN. § 21.019 (Vernon 1984 & Vernon Supp. 1989). However, a condemnor may lose the right to dismiss by taking possession of the property. Murray, 731 S.W.2d at 557. A "taking" is an actual physical invasion or an appropriation of the property, and a taking is complete when the landowner is prejudiced and the status quo cannot be restored. Id. A landowner is prejudiced where the land is physically possessed and used by the condemnor. Id. The prejudice referred to in Murray is founded on the fundamental right to possession or payment. Fort Worth Concrete Co. v. State, 400 S.W.2d 314, 317 (Tex. 1966). Thus, although a condemnor has the right to correct its errors, to dismiss its proceeding for condemnation, and to abandon the purpose of taking the land, it may not exercise any of these rights to the prejudice of the landowner. Lower Nueces River Water Supply Dist. v. Cartwright, 160 Tex. 239,___, 328 S.W.2d 752, 757 (1959), quoting Brazos River Conservation & Reclamation Dist. v. Allen, 141 Tex. 208, 213, 171 S.W.2d 842, 844 (1943).
        With regard to the temporary easement, appellees do not dispute that TRA utilized the temporary easement for a period of 204 days. However, appellees argue that TRA actually possessed the property for those 204 days, and, therefore, appellees were prejudiced by TRA's possession. FN:4 We conclude that this type of "possession" was not contemplated by the Texas Supreme Court as the type of possession that would preclude TRA from filing an amended petition. Cf. Cole, 313 S.W.2d 524, 526-27 (condemnor secured an easement from the commissioners, and, thereafter, the county court permitted condemnor to limit its rights under the easement so as not to interfere with the landowner's right to enter upon the land for purposes of removing sand and gravel). The temporary easement was, as stated in the original petition, to continue "only for so long as is required to complete the construction." Although TRA did in fact utilize the easement for a period of 204 days, this possession was temporary in nature and, as specifically stated in TRA's original petition, was never intended to be permanent. At a later date, if TRA once again desires to utilize the privileges of a temporary easement, then TRA may do so by future condemnation proceedings. If, however, TRA later attempts to utilize the privileges of a temporary easement on appellees' property without commencing a condemnation proceeding, then such an interference will constitute a taking by inverse condemnation.                  
        Although neither party cited it, we find Cartwright instructive with regard to the right of ingress and egress and the "overlap" in the permanent easement discovered between the 1959 judgment and the original petition. Cartwright, 328 S.W.2d at 758-59. Albeit in dictum, the Texas Supreme Court contemplated a situation almost indentical to the one at hand:
        Suppose a plaintiff in condemnation filed an application for the appointment of commissioners one day and upon the following day seeks to dismiss it for the reason that the ownership of the land involved is actually vested in the condemning authority. Would we insist that the filing of the application was forever binding upon the condemning authority, and it would have to re-acquire the land by condemnation because it had made a mistake in filing its application? The answer seems obvious. The application stands as an admission of title only so long as it is not withdrawn, or some action is taken in reference thereto which renders a withdrawal prejudicial to the opposing party. It would logically follow that if the right of dismissal may be exercised without prejudice to the condemnee, then such right exists and when exercised, operates to remove all admissions as to title which are inferred from and incident to the filing of an application for the appointment of special commissioners. . . .
Id. We conclude that this same rationale applies prior to the confirmation of the commissioners' award or other judgment of the court. See Cole, 313 S.W.2d at 531. TRA should have been permitted to amend its petition to exclude that property in which it already had an ownership interest identical to the interest it now seeks.
        Appellees had the burden to prove to the trial court that they would be prejudiced by the amendment of TRA's petition. See West, 417 S.W.2d at 299-300. Appellees attempted to establish prejudice through testimony that real estate values in the north Texas area had rapidly declined in value since 1982 when TRA filed its original petition. We conclude that evidence regarding the decline in market value is not the standard by which the trial court must determine whether the filing of TRA's amended petition would prejudice appellees. See Murray, 731 S.W.2d at 557. Thus, we hold that the trial court erred in refusing to permit TRA to amend its petition in order to accurately reflect the number of days TRA would occupy the temporary easement; to exclude that portion of the permanent easement which TRA previously obtained in the 1959 judgment; and to omit rights of ingress and egress previously obtained in the 1959 judgment.         Second, TRA contends that appellees' motion to strike should not have been granted because appellees failed to meet the requirements of rule 63 of the Texas Rule of Civil Procedure. TRA argues that amendments of pleadings in condemnation cases pending in the courts are governed by the appropriate Texas Rules of Civil Procedure. State v. Taylor, 721 S.W.2d 541, 544 (Tex. App.--Tyler 1986, writ ref'd n.r.e.), citing State v. Nelson, 160 Tex. 515,___, 334 S.W.2d 788, 790 (1960). Rule 63 provides that "[p]arties may amend their pleadings . . . as they may desire . . . at such time as not to operate as a surprise to the opposite party." TEX. R. CIV. P. 63 (emphasis added). TRA maintains that because this case involves a pretrial amendment filed more than seven days before trial, no leave of court was necessary, and that TRA had an absolute right to amend. Hardin v. Hardin, 597 S.W.2d 347, 349 (Tex. 1980); Taylor, 721 S.W.2d at 544; TEX. R. CIV. P. 63. During the hearing on the motion to strike, appellees' counsel conceded that appellees were not "surprised" by the filing of the amended petition. Thus, we conclude that appellees are not complaining of prejudicial surprise regarding a violation of rule 63. Consequently, we need not review TRA's second contention.
         Because we conclude that the evidence is insufficient to establish that the appellees were prejudiced by the amendments TRA sought in its amended petition, we sustain TRA's first point of error. We hold that the trial court abused its discretion in refusing to permit TRA to file its amended petition. Next, we must determine whether the trial court's error constituted reversible error. Upon review of the entire record, we are of the opinion that the trial court's action was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment. See TEX. R. APP. P. 81(b)(1); see also Nix v. H. R. Management Co., 733 S.W.2d 573, 576 (Tex. App.--San Antonio 1987, writ ref'd n.r.e.). By granting appellees' motion to strike, the trial court permitted the jury to consider and assess the damages incurred by the taking of the land and the damages to the remainder without the benefit of the reduction in rights sought in TRA's amended petition. See generally West, 417 S.W.2d at 301. We conclude that the trial court's decision to strike the amended petition was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.
        Because we hold that the trial court's action was prejudicial and, thus reversible error was committed, the remaining points of error will not be addressed. TEX. R. APP. P. 90(a).
        The judgment of the trial court is reversed, and the cause is remanded.
                
                                                          SUE LAGARDE
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00951.1/me
                                        
 
 
FN:1 We note that the trial court judgment recites that "SOUTHWEST SAVINGS ASSOCIATION, by written disclaimer on file herein, disclaimed any interest in these proceedings." However, we also note that the judgment thereafter, at page eight, in granting TRA a permanent easement, names SOUTHWEST SAVINGS ASSOCIATION. Consequently, even though SOUTHWEST did not file a brief, we name them in our opinion and judgment in this appeal.
FN:2 These calculations were relied upon by appellees and are not disputed by TRA. Appellees do not dispute the fact that with regard to the permanent easement, the amended petition only deletes that area of land that was previously acquired in the 1959 judgment.
FN:3 As specified in the amended petition, the temporary construction easement was to take place from November 30, 1982, to June 21, 1983 (a total of 204 days).
FN:4 We note that appellees do not contend that the temporary easement was used for any purpose other than as specified in the original and amended petitions.
File Date[01-02-89]
File Name[880951F]